by Ben Zeisloft
President Joe Biden unveiled a new commission to explore the possibility of packing the Supreme Court. Although the commission does contain some constitutional originalists, it is heavily staffed by legal professors with revisionist views on the nation’s top judicial body.
The Biden administration unveiled a “Presidential Commission on the Supreme Court of the United States,” which will “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform” — including “the length of service and turnover of justices on the Court” and “the membership and size of the Court.”
Although the White House insists that the commission is meant to be “bipartisan,” several of its members — both right-leaning and left-leaning — appear to hold some degree of revisionist views on the Supreme Court.
For instance, Michelle Adams — a law professor at Yeshiva University — once suggested that “it might be time to take a fresh look at term limits for Supreme Court justices.”
I’m thinking it might be time to take a fresh look at term limits for Supreme Court justices. https://t.co/ne0gA9eNq2
— Michelle Adams (@mvadams12) October 4, 2018
Meanwhile, Laurence Tribe — a law professor emeritus at Harvard University — has frequently characterized President Donald Trump’s nomination of conservative justices as “court packing.”
“There has never been a Supreme Court confirmation while a presidential election is underway,” he wrote during the confirmation process of Justice Amy Coney Barrett. “The Constitution permits it, but it’s an irresponsible abuse of power designed to kill the ACA and pack the Court to back up Trump’s plan to stop counting on Nov 3.”
There has never been a Supreme Court confirmation while a presidential election is underway. The Constitution permits it, but it’s an irresponsible abuse of power designed to kill the ACA and pack the Court to back up Trump’s plan to stop counting on Nov 3https://t.co/KBJkdHoxJS
— Laurence Tribe (@tribelaw) September 27, 2020
Tribe likewise stated that the nomination of Justice Brett Kavanaugh represented court packing.
Covering for murderers, sexual abusers, and perjurers who “strongly deny” their guilt is a criminal specialty of our pathetic president — especially when the seemingly guilty parties are helping Trump get richer (Putin, Saudi Prince MBS) or helping him pack SCOTUS (Kavanaugh).
— Laurence Tribe (@tribelaw) October 16, 2018
He indicated openness to changing the number of Justices on the Court: “Things change. The Framers rightly left things like the Court’s size to Congress.”
Aha! Here’s something I can agree with the court-packers about: @marcorubio’s idea of setting in constitutional concrete the current 9-justice Court is ridiculous. Things change. The Framers rightly left things like the Court’s size to Congress. https://t.co/JgISh0eeEW
— Laurence Tribe (@tribelaw) March 20, 2019
Tribe compared a Supreme Court ruling that permitted religious New Yorkers to resume worship services to Margaret Atwood’s The Handmaid’s Tale.
A court that insists on preferential treatment of churches while subordinating public health, bodily integrity & privacy is starting to resemble the highest judicial authority of the theocratic and misogynist country in Atwood’s dystopian "Handmaid’s Tale” https://t.co/svEeKx0qLW
— Laurence Tribe (@tribelaw) November 29, 2020
Keith Whittington — a political science professor at Princeton University — appears to be more skeptical of increasing the size of the Supreme Court.
In contrast to Tribe’s assertions, Whittington wrote in Newsweek that conservatives appointing conservative-leaning justices is “not what ‘court-packing’ means.”
“Court-packing would be an announcement that politicians are above the law, and few politicians have been so bold as to attempt to grasp that mantle,” he wrote.
New from me in Newsweek
Why the Supreme Court has nine Justices | Opinion https://t.co/WfaXigvQaM
— Keith E. Whittington (@kewhittington) October 21, 2020
Michael Waldman — the President of the Brennan Center for Justice at New York University School of Law — echoed other professors’ concerns about the Kavanaugh nomination.
We're now hours into a new constitutional era: the first hard-right Court since the 1930s, and a possible epic clash between the Court and the country for years to come. My take on Kavanaugh's confirmation. https://t.co/FbjT7y2VEd
— Michael Waldman (@mawaldman) October 6, 2018
“The circumstances of his confirmation, too — the unpardonable treatment of Christine Blasey Ford, the sham investigation, Donald Trump’s misogyny — will make any rulings on Roe v. Wade and other issues of women’s rights and bodily autonomy even more painful,” Waldman told Politico. “A hard-right majority controls the Supreme Court for the first time since the early 1930s.”
William Baude — a University of Chicago Law School professor and former clerk for Chief Justice John Roberts — is one of the more originalist members of the commission.
Baude wrote in Reason that he is open to eighteen-year term limits for Justices which, although a form of Supreme Court reform, could “also fix the number of Supreme Court Justices at the same time, which is probably a good idea at this point.”
One Cheer for Supreme Court Term Limits https://t.co/6PTg3MM8g1
— William Baude (@WilliamBaude) October 26, 2020
Adam White — a professor at George Mason University’s Antonin Scalia Law School and a resident scholar at the American Enterprise Institute — appears to be another traditionalist-leaning member of the commission.
In response to the prospect of expanding the Supreme Court, White tweeted a scene from “Planet of the Apes,” in which the main character exclaims “you maniacs!”
Justice Ginsburg knew that Court-packing plans are actually Court-wrecking plans. That’s why she opposed them.https://t.co/sgN8XIVHWQ
— Adam White (@adamjwhitedc) September 20, 2020
In September, White also wrote for The Bulwark that President Trump should nominate Justice Ginsburg’s successor while the Senate delays “a final vote on the nomination until after the election.”
Start the process. But save the vote. Save the Court. And in so doing, save our country.https://t.co/teSdGbuFtP
— Adam White (@adamjwhitedc) September 20, 2020
Campus Reform reached out to several of the aforementioned professors, with all of them declining to comment.
Tribe told Campus Reform that as a member of the commission, he is “required” to direct all press inquiries to White House spokesman Andrew Bates.
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Ben Zeisloft is a Pennsylvania Senior Campus Correspondent, reporting on liberal bias and abuse for Campus Reform. He is studying Finance and Marketing at the Wharton School of the University of Pennsylvania. Benjamin also writes for The UPenn Statesman and the Wharton International Business Review.